A national bank employee
who holds the title of vice president but whose duties are not among those
normally associated with that position is not barred from bringing an
employment-related suit under state law, the First District Court of Appeal has
ruled.

Div. Three last week
certified for publication its Aug. 30 opinion reversing an Alameda Superior
Court judge’s grant of summary judgment in favor of Bank of America.

Judge Steven A. Brick
held Padmanabhan Ramanathan’s action for racial, national-origin, and religious
discrimination in violation of the state Constitution and Fair Employment and
Housing Act; retaliation in violation of FEHA; wrongful termination in
violation of public policy; and infliction of emotional distress to be
preempted by Sec. 24(Fifth) of the bank act.

Banking Act

The section grants a
national banking association the power “[t]o elect or appoint directors, and by
its board of directors to appoint a president, vice president, cashier, and
other officers, define their duties, require bonds of them and fix the penalty
thereof, dismiss such officers or any of them at pleasure, and appoint others
to fill their places.”

The statute has been
interpreted by a number of courts around the country, including the California
Supreme Court, as precluding members of the affected class of employees from
bringing employment claims under state law, although some courts have held that
anti-discrimination claims may be brought if the conduct barred by state law is
also barred by federal law.

Bank of America contends
that Ramanathan cannot sue because he was a vice president of the bank when his
employment was terminated in February 2003. Ramanathan argues that because he
was a computer programmer, not a banker or supervisor, the bank could not fire
him “at pleasure.”

In his declaration, Ramanathan
explained that he had no employees working under his supervision, had no
control over anyone else’s employment, was primarily involved in the design and
development of software applications, and had nothing to do with banking
operations or customer service.

Title ‘Insignificant’

When he asked his
supervisor why he was called a “vice president,” he was told the title was
“insignificant” and had no effect on his wages or responsibilities, but that
use of the title was common in the corporate world, he declared.

Alameda Superior Court
Judge Jeffrey W. Horner, writing on assignment for the Court of Appeal, cited +Wells
Fargo Bank v. Superior Court+ (1991) 53 Cal.3d 1082. The court in that case
held that three former branch managers who had the title “assistant
vice-president,” and were responsible for executing contracts and supervising
transactions involving significant amounts of money, were “other officers” and
among those barred from bringing state-law claims.

Horner concluded that
giving Ramanathan the title “vice president” did not, in and of itself,
insulate the bank from state-based legal claims he might bring in connection
with employment. In a footnote, he derided the bank’s “startling assertion” at
oral argument that it could designate all of its employees, “including
janitors, maintenance workers, everyone” as vice presidents whose claims would
be subject to preemption under the banking act.

Only when a person meets
the definition of an officer under Wells Fargo—someone whose position
was created by the bank’s board, whose appointment was made by the board or someone
authorized by the board to make the selection, who has the express authority to
bind the bank in transactions with third parties, and who has decision-making
authority over banking operations—are state-law claims by that person preempted
by the National Bank Act, Horner said.

If the averments of Ramanathan’s
declaration are accurate, Horner said, the “limited, non-banking nature of his
duties and responsibilities” places him outside the class of persons to whom
Sec. 24(Fifth) applies.